The employer appealed from a serious violation of section 3385(a) [jack-hammer
concrete without adequate foot protection]. The employer argued that the ALJ’s
findings were not supported by the evidence. The board found that the evidence
was sufficient to establish that the employer’s employee was using a jackhammer
which exposed his feet to crushing or penetrating injuries within the meaning
of section 3385(a), and thus triggered the requirement for appropriate foot
protection. The employer also contested the ALJ's denial of a motion to amend
the appeal at the hearing based upon the employer’s failure to raise classification
of the violation on its appeal form. The board affirmed the ALJ's denial of
the motion since the employer failed to establish good cause for the untimely
motion and because the division demonstrated that it would be prejudiced by
the amendment.

The employer also appealed from a general violation of section 1541.1(a) [employees
in excavation without cave-in protection] and a regulatory violation of section
341(a)(1) [no excavation permit for a 5’3” deep elevator base].
The board found that although the division inspector did not see anyone in the
excavation, the record showed that the employer’s superintendent admitted
that his two laborers dug the excavation by hand, and the presence of a ladder
in the excavation further supported the finding. The board also held that under
the safety order the depth is measured from the bottom of the excavation to
the surface level. The board found that the evidence established violations
of sections 1541.1(a) and 341(a).